3.2 Federal Human Rights Laws

As described in the previous section, the society in which we live is constantly evolving. As the values that we share collectively change, so do the rules and regulations that we impose on ourselves. The legislative framework that is adopted by governments is a reflection of our values. For the HR Manager, a clear understanding of the legal framework is absolutely necessary.

HR role in the legal framework includes understanding business law, employment law, having a good knowledge of legislative law, and understanding and attracting and retaining quality employees.

Employers and employees have expectations of each other.  Some of these expectations are formal. An example of employer expectations include showing up for work for a specific number of hours during the week.  Employees expect employers to provide them with proper training, getting paid and on time, a safe workplace. As well, there are informal expectations.  Employers expect employees  to have a positive attitude, be professional and loyal. While employees expect recognition for work well done, respect and trust.

The legal framework (a formal expectation) is established to ensure employees not exploited and that employers are protected from bad business practices from employees. This is where the government plays a role to balance the employee and employer relationship.

Federal Human Rights Laws

The Canadian Charter of Rights and Freedoms

The Constitution Act of 1982 is the highest law of Canada and is a landmark document in Canadian history. It achieved full independence for Canada by allowing the country to change its Constitution without approval from Britain. It also enshrined the Charter of Rights and Freedoms in Canada’s Constitution which guarantees fundamental rights to every human, including: rights of freedom of speech, press, assembly, association, and religion. This video: The Charter of Rights and Freedoms from tvo [2:12] explains the various aspects of the Charter.

The Canadian Human Rights Act (CHRA)

All people who live in Canada are protected by human rights legislation. This law protects intentional and unintentional discrimination in the workplace. People have access to the federal government is they have experienced harassment or discrimination when it is based on grounds of discrimination such as race, age and sexual orientation.

Protected Grounds

According to the Canadian Human Rights Act, (R.S.C. 1985, cH-6)  protected grounds means

race, national or ethnic origin, colour, religion, age, sex, sexual orientation, gender identity or expression, marital status, family status, genetic characteristics, disability or conviction for an offence for which a pardon has been ordered. Idem: where the ground of discrimination is pregnancy or child-birth, the discrimination shall be deemed to be on the ground of sex. Idem: Where the ground of discrimination is refusal/request to take a genetic tests, disclose or authorize disclosure of results, the discrimination shall be deemed to be on the group of genetic characteristics. (s. 3).

An example of protected grounds is a student who is studying to complete a diploma program and needs accommodation to complete the coursework.

Harassment

Harassment is behaviour that annoys or troubles another employee. This may include verbal abuse, bullying, jokes, making faces or comments about another employee either verbally or through social media. The types of harassment are physical harassment, verbal, sexual and emotional harassment.  An example is an English speaking employee mocks an employee’s accent from another country.

The CHRA became effective in March 1978. It proclaims that

all individuals should have an opportunity equal with other individuals to make for themselves the lives that they are able and wish to have and to have their needs accommodated, consistent with their duties and obligations as members of society, without being hindered in or prevented from doing so by discriminatory practices based on race, national or ethnic origin, colour, religion, age, sex, sexual orientation, gender identity or expression, marital status, family status, genetic characteristics, disability or conviction for an offence for which a pardon has been granted or in respect of which a record suspension has been ordered (Canadian Human Rights Act, R.S.C., 1985, cH-6, s.2).

Let’s examine this statement in order to fully understand its significance for HRM.

1. “All individuals should have opportunity equal with other individuals to make for themselves the lives that they are able and wish to have”: this means that, considering their desires and abilities, the opportunity to earn a living, which implies the ‘opportunity to work’, should be equal for all.
2. These opportunities should not be hindered by discriminatory practices based on “race, national or ethnic origin, colour, religion, age, sex, sexual orientation, gender identity or expression, marital status, family status, genetic characteristics, disability or conviction for an offence for which a pardon has been granted or in respect of which a record suspension has been ordered”: the CHRA is very specific as to the categories that are deemed discriminatory. These categories have changed over time, following changes in our society. Currently, the issues raised by genetic testing are at the forefront of these societal changes. Is it legal to deny insurance for people known to have gene mutation that causes or increases the risk of an inherited disorder? These issues are currently being debated (see Canadian Supreme Court decision) and as genetic testing becomes more common, we as a society, will have to decide the extent to which it is OK to use this information to make decisions about people.
   

Enforcement of CHRA

The CHRA only applies to federal government departments and agencies, to Crown corporations, and to businesses under federal  jurisdictions such as banks, airlines, and communication companies. Employees of these organizations who feel discriminated against can file complaints directly to the Canadian Human Rights Commission (CHRC). There is a systematic process in place to handle these complaints. After a complaint is filed, a mediation process is attempted to try to resolve the issue between the parties. If the mediation fails, the dossier is handed over to the Human Rights Commissioner who can decide to:

• dismiss the complaint;
• send the complaint to conciliation;
• defer the decision and request more information and further analysis; or
• refer the complaint to the Canadian Human Rights Tribunal (Canadian Human Rights Commission, n.d.)

Tort Law

Tort law is from Canada’s British heritage.  It is the foundation of the Canadian legal system. This law provides compensation for people who are injured, or has had their property damaged by others. It is considered private law. It acts as a punishment to provide damages.

Tort law is divided into two areas:  Intentional Torts are serious, deliberate acts that harm people, or someone has interfered with another person’s rights. An example is one person assaulting another person intentionally. Torts of Negligence or Unintentional Torts are injuries incurred because of carelessness on the part of another person.  An example of someone finding a mouse inside their cereal box due to carelessness of an employee is considered unintentional tort (Klar, 2020).

Either tort breach that is legitimate would need to be compensated for their losses.  It includes money for pain and suffering.

These laws evolve over time. An example is “no fault” insurance for car accidents. Other examples recently are invasion of privacy, and negligence with such groups as lawyers and engineers working on projects.

“HRM and the Law” from Human Resources Management – 2nd Ontario Edition by Elizabeth Cameron is licensed under a Creative Commons Attribution-NonCommercial-ShareAlike 4.0 International License.